Somewhat complex issue


#1

I will give a small bot of background info before my question. My divorce was handled in TN in 2008. My ex husband did not respond at the time so I got a default judgement. They set child support at just about $100 a month for our 3 kids at that time. He was in the military, and at the time was an E-6. Because of the default judgement, I was awarded custody and he was to have visitation, which was set as to be decided between parties. He has never asked to see the children, and has had very little contact with them by phone since 2008. After the divorce, I moved, with his permission, to NC. That was in fall of 2008. In 2010, he was still in the military and in TN, and filed to modify the order to get a more specific visitation period, and also to lower child support. At that time he had been demoted and was an E-4. We ended up going to mediation, because he was asking to be granted 80 days a year at his discretion, and I did not like the idea that he could then take the children every Christmas, and all of summer break every year. We ended up settling in mediation, and we got a specific schedule. I did not notice at the time but the schedule says he will have 80 days a year, even though if you add the days up it is less than that. The child support was modified at the time because of the new schedule, because in TN it is partially based on days spent parenting. That decision was not final until January of this year, and at that time support was set at $903 per month. He paid it in January, and in February, and then was not allowed to reenlist in the military because he had been demoted again and was an E-3 with 12 years in. (all of the demotions have been based on misconduct on his part). He has not paid the support at all since February, and before that he was not paying the entire amount so he is pretty far behind at this point.

In February I opened a case here in NC to enforce the support. He moved to CA after getting out of the military. Now he is in school, using GI bill benefits that pay for his classes, and he also gets a housing allowance from them, that from what I can find on the web, is $2700 a month for the months he is in school. CA child support only just got around to accepting the case for enforcement this month. Now he is wanting to modify. I was imputed at minimum wage when we divorced because I had been a stay at home mom during the marriage. Since the divorce I have gone back to school, and I am now working as an RN since July. I know the support should be modified anyways based on my new job.

Will the modification have to go through NC or CA? Neither of us live in tN anymore, and when I tried to get TN to enforce the order before they would not help me since neither of us live there. He is telling me that he is going to try to get the order modified to show $0 income for him. How likely is that to happen? In this situation, I feel that he is purposely unemplyed. He was making a very good amount of money in the military before. He is in a school to become an auto mechanic now. Looking at some numbers, it looks like average salary in CA for a mechanic is $37k per year, which is actually less than he was making in the military when we divorced. I am thinking that because his own actions led to him being unemployed, it would be fair to impute him at the wage he was making before. At the very least I feel that he should have to count the income he gets for going to school as income for child support.

I also have 2 other chilkdren now, and I did not get a hardship credit for them at the time of the original order or the modification. Would I be allowed to ask for that credit now that I am working? I am also providing healthcare coverage, and he is ordered to provide it under the current order.

Would it be beneficial for me to hire an attorney to handle this? My fear is that he will be granted a minimum $50 a month order.


#2

Sorry, the original support amount was $1100, not $100.


#3

It sounds like if you went to NC for enforcement, that the NC agency would seek to register the TN order. If he seeks a motion to modify, it would likely be governed by NC law. Refer to Rule 52C-6-611.

In NC, the guidelines say the following regarding imputing income:
(3) Potential or imputed Income. If the court finds that a parent’s voluntary unemployment or underemployment is the result of the parent’s bad faith or deliberate suppression of income to avoid or minimize his or her child support obligation, child support may be calculated based on the parent’s potential, rather than actual, income.
Potential income may not be imputed to a parent who is physically or mentally incapacitated or is caring for a child who is under the age of three years and for whom child support is being determined.

The amount of potential income imputed to a parent must be based on the parent’s employment potential and probable earnings level based on the parent’s recent work history, occupational qualifications and prevailing jobopportunities and earning levels in the community. If the parent has no recent work history or vocational training, potential income should not be less than the minimum hourly wage for a 40-hour work week.

In NC, the guidelines do take additional children into consideration.

The old adage goes, “he who is his own lawyer has a fool for a client.” In the least it is in your best intest to consult with an attorney and see how he or she can assist you.